The court affirmed the trial court’s denial of the employee’s
motion for contempt. The court noted that the trial court did not make
any specific findings of fact in the order denying the employee’s
motion for contempt, and that the employee did not file a post-judgment
motion or otherwise raise the issue of the sufficiency of the evidence
regarding failure of the employer to pay for the employee’s pain
management treatment. Ms. at 20. As a consequence, the court declined
to address the merits of the employee’s argument concerning contempt because:

“[I] a nonjury case in which the trial court makes no specific findings
of fact, a party must move for a new trial or otherwise properly raise
before the trial court the question relating to the sufficiency or weight
of the evidence in order to preserve that question for appellate review.”

In resolving the vocational disability issue, the court first noted that
in the trial court “the employee specifically argued only that the
employer had waived the ‘affirmative defense’ established
in the return-to-work statute. The parties litigated that particular point,
and the trial court ruled against the employee.” Ms. at 13. Consequently,
the court addressed only the issue of whether the return-to-work statute
constitutes an affirmative defense. The court noted that “[o]n appeal,
this court is limited to considering the case in the context under the
theories upon which it was tried in the proceedings below. See
Vulcraft, Inc. v. Wilbanks, 54 Ala. App. 393, 395, 309 So. 2d 105, 106 (Ala. Civ. App. 1975).”
Ms. at 13.

The court noted the question of whether the provisions of the return-to-work
statute upon which the employer relied, and upon which the trial court
based its judgment, are affirmative defenses that can be waived is a purely
legal issue to which it applied as a
de novo standard of review.
Ibid. The court distinguished between an affirmative defense and a negative
defense as follows:

“An affirmative defense is distinguishable from a negative defense
in that an affirmative defense raises new matters that, assuming the allegations
in the complaint to be true, constitute a defense to the action and have
the effect of defeating the plaintiff’s claims on the merits while
a negative defense simply seeks to refute an essential allegation of the
plaintiff’s complaint.”

Ms. at 14, quoting
Ex parte Gadsden Country Club, 14 So. 3d 830-833-34 (Ala. 2009). The court concluded that the return-to-work
statute as a whole is not an affirmative defense because it is not a means
of defeating or reducing a workers’ compensation claim, but rather
is a method by which a trial court must compute the worker’s earnings
in factual situations governed by the statute. Ms. at 15.

However, the court concluded that § 25-5-57(a)(3)(i) is an affirmative
defense. The workers’ compensation law confers on an employee a
right to petition for reconsideration of his or her permanent or partial
disability rating if the employee loses employment within 300 weeks of
a workplace injury. However, reconsideration is not available where “the
loss of employment is for actual or threatened misconduct committed in
connection with his or her work after previous warning to the employee.”
Ibid., quoting § 25-5-57(a)(3)(iv). The court concluded “that §
25-5-57(a)(3)i.(i) through (v) create five separate affirmative defenses
that are available to the employer in an action for reconsideration of
an injured worker’s permanent-partial-disability rating.”
Ms. at 16. The court concluded that the employer had waived the affirmative
defense that the employee’s loss of employment was for actual or
threatened misconduct by failing to plead it in its answer. Ms. at 17-18.
Because the employer waived the affirmative defense, “the trial
court erred in declining to consider evidence of the employee’s
vocational impairment based on that defense.” Ms. at 19.

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